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Seeking shelter in public parks.



Homelessness is a significant problem in many urban centres throughout Canada.

During the 1980s and 1990s, major cities across Canada began campaigns to rid the streets and parks of the homeless. In some cities, police and other municipal officials harassed homeless people for sleeping and performing life-sustaining activities in public places with the purpose of driving them out of the city or rendering them invisible.

Just when it seemed that municipalities could do almost anything to control the homeless population within their urban centres, the judiciary intervened. Recently, the British Columbia Court of Appeal rendered a decision relating to the homeless and the use of public parks in the City of Victoria. The case is Victoria (City) v. Adams, 2008 BCSC 1363,2009 BCCA 563.

Adams--The Trial Decision


The decision in Adams centered around the prohibition against erecting temporary shelter on public property in the City of Victoria as set out in the Parks Regulation Bylaw and the Streets and Traffic Bylaw.

In October 2005, a number of homeless people set up a "tent city" in a public park in the City of Victoria. A group of up to 70 people occupied the public park, setting up more than 20 tents. In response, the City commenced an action against nine of the homeless people, seeking an injunction to enforce its Parks Regulation Bylaw. The nine defendants in the action argued that this prohibition infringed on the rights of homeless people to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to s. 7 of the Canadian Charter of Rights and Freedoms, ("Charter"). The City of Victoria argued that the claims of the homeless did not fall within the scope of s. 7 of the Charter, the prohibition did not infringe s. 7 of the Charter and that even if it did, any infringement was justified pursuant to s. 1 of the Charter.

The trial decision of Madam Justice Carol-Jean M. Ross turned on several important findings of fact.

* First, she found that a significant number of people in the City of Victoria have no choice but to sleep outside in the City's parks or streets.

* Second, there were, at the time of the decision, more than 1,000 homeless people living in the City, but the City had only 104 shelter beds, expanding to 326 in extreme conditions.

* Third, she determined that the City's prohibition prevented the homeless from erecting any form of overhead protection including, for example, a tent, a tarp strung up to create a shelter or a cardboard box, even on a temporary basis. Expert evidence established that exposure to the elements without adequate protection was associated with a number of significant risks to health including the risk of hypothermia. Justice Ross wrote:

"... the effect of the prohibition is to impose upon those homeless persons, who are among the most vulnerable and marginalized of the City's residents, significant and potentially severe additional health risks. In addition, sleep and shelter are necessary preconditions to any kind of security, liberty or human flourishing".

The Trial Decision


Having reviewed a considerable amount of statistical and expert evidence and the case law, Justice Ross concluded that the prohibition on taking a temporary abode contained in the bylaws constituted an interference with the life, liberty and security of the homeless people. She said that the prohibition was both arbitrary and overbroad and not consistent with the principles of fundamental justice. Finally, she concluded that the infringement was not justified pursuant to s. 1 of the Charter.

The following are the major components of Justice Ross's decision.

Justice Ross began by referencing the Community Charter, S.B.C. 2003, c. 26 ("Community Charter"), which authorizes a municipality to regulate, prohibit and impose requirements in relation to public places. Accordingly, the City of Victoria enacted the bylaws, which at that time prohibited, inter alia, loitering or taking up temporary abode overnight in public parks.

International Human Rights Instruments

In her judgment, Justice Ross reminded everyone that Canada was a party to several international human rights instruments which recognize adequate housing as a fundamental right. The homeless people were not seeking to enforce the international covenants in the proceedings, nor were they seeking to use the international covenants as an aid in the interpretation of the bylaws. Rather, they referenced the international covenants as an aid in the interpretation of the meaning and scope of rights under the Charter. In that regard, the Supreme Court of Canada has confirmed on numerous occasions the informative value of international human rights norms to the interpretation of s. 7 of the Charter.

For example, L'Heureux-Dube J. in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), asserted at para. 70 that international human rights law is "a critical influence on the interpretation of the scope of the rights included in the Charter."

Similarly, Justice Ross concluded that while the various international instruments do not form part of the domestic law of Canada, they may be used to interpret the Charter, and specifically the scope and content of s. 7 of the Charter. She also indicated that the scope of s. 7 was not limited to purely criminal or penal matters. In the 2000 Supreme Court of Canada case of Blencoe v. British Columbia (Human Rights Commission) Justice Bastarache stated:
 Although there have been some decisions of this
 Court which may have supported the position
 that s. 7 of the Charter is restricted to the sphere of
 criminal law, there is no longer any doubt that s. 7
 of the Charter is not confined to the penal context.

In the Adams case, given that the bylaws prohibited certain conduct, the Court held that the bylaws constituted state action that directly engaged the justice system sufficiently to fall within the scope of s. 7 of the Charter.

Is the State Action the Cause of the Deprivation?

The Attorney General of British Columbia and the City of Victoria argued that the source of deprivation at issue was the condition of being homeless and not the bylaws; therefore, the claim should fall outside the scope of s. 7 of the Charter since any deprivation of protected interest was not the result of state action. In Blenco, Bastarache J. emphasized that the harm to the protected interest must result from state action.

Justice Ross responded:
 It is true that many of the problems experienced
 by the homeless are the direct result of their
 homeless state. However, the state action was
 not the cause of the medical problems that were
 the factual matrix at issue in Gosselin. The state's
 action did not cause the need to receive an abortion
 at issue in R. v. Morgentaler, [1998] 1 S.C.R.
 30 (S.C.C.). In both those cases, the state action at
 issue was legislation that impaired the ability of
 persons in need to alleviate or address that need.

She went on to say that "homeless people are exposed to a number of risks to their lives, health and security of the person because of their homeless condition". She concluded that the bylaws impaired the ability of the homeless to address their need for adequate shelter. In her view, this was a particular state action designed to create a particular deprivation. She concluded that this satisfied "the need for the deprivation to have been caused by state action".

Is this Claim for a Positive Benefit?

The Attorney General of British Columbia and the City of Victoria also argued that the enactment of the bylaws came in response to the issue of homelessness and was an area of policy within the sphere of jurisdiction of the municipality, not the courts.

Justice Ross responded: "It is my respectful view that it is the role of government to determine how best to allocate scarce resources, and that a municipal council should be afforded a certain amount of deference in policy choices, especially when dealing with such significant and complex issues. However, I recognize that it is the responsibility of the government, when making these decisions, to act in conformity with the Constitution. As Chief Justice McLachlin stated in Chaoulli c. Quebec (Procureur general), 2005 SCC 35, [2005] 1 S.C.R. 791 (S.C.C.)at para. 1:
 Yet in a constitutional democracy, governments
 must act accountably and in conformity with the
 Constitution and the rights and liberties it guarantees.

Justice Ross indicated that the Adams case was not about the allocation of scarce resources, but rather about the constitutionality of a prohibition contained within the bylaws, and the issue of constitutionality fell squarely within the role and responsibility of the courts. She said:

"Simply put, the fact that the matter engages complex policy decisions does not immunize the legislation from review by the courts pursuant to the Charter."

Property Rights

The Attorney General of British Columbia and the City of Victoria further argued that the defendants' claiming the right to camp on public property made the issue more about property rights than constitutional rights. They reminded the Court that property rights do not fall within the scope of s. 7 of the Charter.

Justice Ross rejected this argument. She held that "the use of park space by an individual does not necessarily involve a deprivation of another person's ability to utilize the same 'resource'." She concluded by stating:
 The nature of the government interest in public
 property has most often been discussed in the
 context of freedom of expression. In that context,
 the Supreme Court of Canada has definitively
 rejected the idea that the government can determine
 the use of its property in the same manner as
 a private owner. Public properties are held for the
 benefit of the public, which includes the homeless.
 The government cannot prohibit certain activities
 on public property based on its ownership of
 that property if doing so involves a deprivation of
 the fundamental human right not to be deprived
 of the ability to protect one's own bodily integrity:
 see Comite pour la Republique du Canada--Committee
 for the Commonwealth of Canada v. Canada, [1991] 1
 S.C.R. 139 (S.C.C.)

Summary of s. 7 of the Charter

After a thorough review of cases relating to s. 7 of the Charter, Ross J. concluded that the prohibition in the bylaws against the erection of temporary shelter in the form of tents, tarpaulins, cardboard boxes or other structures exposed the homeless to significant risks. Accordingly, she held that the prohibition constituted a deprivation of the rights to life, liberty and security of the persons protected under s. 7 of the Charter. She wrote:
 In the present case, Victoria does not have sufficient
 shelter spaces for the homeless. Large
 numbers of homeless people are therefore left to
 shelter themselves on public property. The City
 has prohibited the erection of temporary shelter in
 the form of overhead protection, thereby exposing
 the homeless to a risk of significant health problems
 or even death. As in JR. v. Parker(2000), 188
 D.L.R. (4th) 385, 49 O.R. (3d) 481, 146 C.C.C.
 (3d) 193, 75 C.R.R. (2d) 233, 37 C.R. (5th) 97, 135
 O.A.C. 1, 2000 CarswellOnt 2627 (Ont. C.A.)], the
 state action by means of a sanction has deprived
 the homeless of access to the shelter required for
 adequate protection from the elements. As in [R.
 v. Morgentaler, [1998] 1 S.C.R. 30 (S.C.C.).], the
 homeless person is left to choose between a breach
 of the bylaws in order to obtain adequate shelter or
 inadequate shelter exposing him or her to increased
 risks to significant health problems or even death.

Accordingly, the first requirement under s. 7 of the Charter was satisfied.

The next step in the analysis was to determine whether the interference with the life, liberty or security of the person was contrary to the principles of fundamental justice. Ross J. reviewed the City's rationale for the bylaws, which included protecting the parks and public spaces from damage or harm, ensuring that the parks and public spaces were available for the use and enjoyment of all members of the public generally and reducing any public health considerations. She concluded that there was "no evidence and no reason to believe that any of the damage described [by the City] would be increased if homeless people were allowed to cover themselves with cardboard boxes or other forms of overhead protection while they slept" (at para. 193).

However, Justice Ross did indicate that there may be less restrictive alternatives that would advance the City's objectives. For example, requiring the overhead protection to be taken down every morning and creating certain zones in parks where sleeping would be permitted may achieve the City's purpose.

Justice Ross concluded that the prohibition on taking a temporary abode constituted an interference with life, liberty and security of the person of the homeless people who were affected. She also concluded that the prohibition was both arbitrary and overbroad, and hence not consistent with the principles of fundamental justice.

Section 1 of the Charter

Next, Ross J. had to determine whether or not the City could establish that the bylaws were justified pursuant to s. 1 of the Charter.

She wrote:
 In J.T.I. MacDonald Corp. c. Canada (Procureure
 generale), 2007 SCC 30, [2007] 2 S.C.R. 610 (S.C.C.),
 Chief Justice McLachlin set out the test for whether
 a provision is justified pursuant to s. 1 as follows at
 para. 36.

 The concept of proportionality finds its roots in
 ancient and scholastic scholarship on the legitimate
 exercise of government power ... This Court in
 Oakes set out a test of proportionality that mirrors the
 elements of this idea of proportionality--first, the
 law must serve an important purpose, and second,
 the means it uses to attain this purpose must be proportionate.
 Proportionality in turn involves rational
 connection between the means and the objective,
 minimal impairment and proportionality of effects.

After reviewing the case law with respect to s. 1 of the Charter, Justice Ross found that the bylaws, to the extent that they prohibited the erection of overhead protection, could not be justified as a reasonable limit. She granted a Declaration that the bylaws were of no force and effect insofar as they applied to prevent homeless people from erecting temporary shelter in city parks.

Court of Appeal Decision

The City of Victoria appealed the decision to the British Columbia Court of Appeal. It mostly affirmed the decision of the trial judge. The Court of Appeal insisted that the trial judge's decision did not give the homeless free reign to erect structures at will on public property. The Court of Appeal also clarified that the trial judge's declaration of the right to "temporary shelter" should be read as "temporary overnight shelter". The serious health risks posed to the homeless outweighed any benefit that might have flowed from the blanket prohibition on erecting structures in the park.


Following the trial decision in Adams, the City of Victoria amended its Parks Regulation Bylaw to prohibit camping between 7:00 a.m. and 8:00 p.m., which was consistent with the comments of Justice Ross in Adams. Had this specification been in place earlier, perhaps Adams would have seen a different outcome.

Although the trial judge was diligent in her analysis of the law and of its potential impact on members of the homeless population, she failed to adequately consider the impact that her ruling would have on other non-homeless members of the tax-paying public who wish to continue to use the city parks in a peaceable manner. In other words, her analysis with respect to s. 1 of the Charter was flawed, in that she essentially dismissed the aim of the bylaws relating to the safety and security of the public at large. The danger created by Justice Ross's determination that the bylaws are unconstitutional is that now there is a very real possibility that groups of homeless people will continue to congregate in various City of Victoria parks and set up semi-disposable ghettos, for want of a better term.

While Justice Ross discussed the fundamental human right not to be deprived of the ability to protect one's own bodily integrity, she only gave real consideration to the rights of homeless people in her balancing exercise. What about the non-homeless, tax-paying public who want to safely and peaceably enjoy city parks? Although she did give some consideration to the issues of additional litter and drug paraphernalia that a "tent city" had the potential to create, she failed to consider the major safety risks posed to other non-homeless park users. For example, a "tent city" creates a danger to members of the public who wish to enjoy the city parks in the usual ways, such as strolling, jogging, playing frisbee, or having a family picnic. The evidence presented in Adams was that groups of up to 70 homeless people were setting up temporary shelters in city parks. It would be very intimidating for a person to walk through a park and be faced with large groups of homeless people popping in and out of their tents, perhaps interacting aggressively with them.

City planners design parks with safety and security in mind, which includes maintaining visible sight lines across key areas. If homeless people are permitted to erect cardboard shelters and tents, particularly if they are grouped together in certain areas, this will obstruct sight lines and impede security within city parks. Surely, this should have factored into Ross J.'s analysis of protection of bodily integrity. In other words, the bodily integrity of non-homeless users of city parks is also at stake. And what about the City of Victoria? It was suggested that it could resolve the issue by increasing the number of shelter spaces. Additional shelter space is the obvious solution to balancing the interests of the homeless and the general public. This would require money and leadership from all levels of government.

The Court's declaration that the bylaws were unconstitutional may create more social harm than good, and place additional financial burdens on a municipality, such as policing, bylaw enforcement parks maintenance. Unfortunately, the Court's decision may place at risk the enjoyment of city parks by families and individuals.

Roberto Noce, Q.C.

Roberto Noce, Q.C. is a partner with Miller Thomson LLP in Edmonton. Mr. Noce is a former Edmonton City Councillor (1995-2001) whose practice includes the areas of municipal and administrative law. This article reflects the views of the author only.
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Title Annotation:Feature Report on Homelessness
Author:Noce, Roberto
Geographic Code:1CBRI
Date:Nov 1, 2010
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